The opinion of the court was delivered by: Judge Kosik
Petitioner in this action is Hugo Zuniga, who is incarcerated at State Correctional Institution at Frackville. Before us are the petitioner's objections to the Magistrate Judge's Report and Recommendation of June 11, 2008, regarding his petition for a writ of habeas corpus under 28 U.S.C. § 2254.*fn1 For the reasons that follow, we will adopt the Report and Recommendation of the Magistrate Judge, and deny the petition.
The Court of Common Pleas of Philadelphia convicted Zuniga of involuntary deviate sexual intercourse and criminal attempt to commit involuntary deviate sexual intercourse, and sentenced him to a term of seven to eighteen years imprisonment. Since Zuniga's minimum sentence expired on October 13, 2003, the Pennsylvania Board of Probation and Parole (the "Board") has denied his parole four times. On August 16, 2007, the Board most recently denied Zuniga's parole because of his "minimization/denial of the nature and circumstances of the offense(s) committed" and his "need to participate in and complete additional institutional programs." The Board advised Zuniga that at his next parole hearing, the Board will consider whether Zuniga has participated in a treatment program for sex offenders.
Zuniga filed his petition for a writ of habeas corpus under 28 U.S.C. § 2254 on March 12, 2008.*fn2 Zuniga alleges that the Board denied him due process when it denied his parole. The Board filed a response to the petition on April 8, 2008, to which Zuniga filed a traverse on May 28, 2008.
Magistrate Judge J. Andrew Smyser issued a Report and Recommendation regarding Zuniga's petition on June 11, 2008. The Magistrate Judge recommends that we deny Zuniga's petition because under Pennsylvania law, a state prisoner has no liberty interest in their chance of parole, see Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 422 U.S. 1, 7 (1979); Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 770 (Pa. Commw. Ct. 1997), and because the Board did not arbitrarily or capriciously deny Zuniga's parole or deny Zuniga's parole based on impermissible criteria, see Block v. Potter, 631 F.2d 233, 236--37 (3d Cir. 1980).
On June 30, 2008, Zuniga filed objections to the Report and Recommendation. He also requested on July 7, 2008 that we take judicial notice of Somers v. Schwartz, No. 04-CV-0698, 2007 WL 2177880 (E.D. Cal. Jul. 27, 2007) (order recommending the grant of petitioner's writ of habeas corpus).*fn3 Respondents responded by brief to Zuniga's objections on July 15, 2008.
Zuniga objects that (1) the proposed findings of the Magistrate Judge are erroneous; (2) the Magistrate Judge failed to address the petitioner's right and liberty interest in participating in a program conducted in Spanish if the Board requires him to complete such program; (3) the Magistrate Judge failed to follow Greenholtz, 422 U.S. 1, and its progeny as it relates to the review of due process claims; (4) the Magistrate Judge failed to address the petitioner's right to enter the program for rehabilitation; and (5) the Magistrate Judge failed to issue a certificate of appealability. Zuniga also requests that we hold an evidentiary hearing. Zuniga's essentially claims that the Board's decision to require him to take a sex-offender program in prison before it will grant him parole violates his due process rights because the program is not offered in Spanish.
Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of the petitioner. See 28 U.S.C. § 2254(b)(1).
In Pennsylvania, a state prisoner may only challenge a Board decision on constitutional grounds by petitioning for a writ of mandamus from the Pennsylvania Commonwealth Court:
Direct appeal of the denial of parole is precluded by Rogers v. Com. Bd. of Probation and Parole, 555 Pa. 285, 724 A.2d 319 (1999), which held that due to its discretionary nature, the decision to deny parole is not an adjudication subject to appeal under the Administrative Agency Law and does not implicate any constitutionally protected interest. However, the Rogers decision noted that "[w]hile appellants are not entitled to appellate review of a Parole Board decision, they may be entitled to pursue allegations of constitutional violations against the Parole Board through a writ of mandamus . . . ." 724 A.2d at 323, n. 5.
Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 289 (Pa. 2001) (footnote omitted). Because mandamus does not lie to compel a purely discretionary act, it cannot be used to challenge the substance of a discretionary act of the Board. See id. at 290. Because the Board's decision to grant parole is discretionary, see Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 770 (Pa. Commw. Ct. 1997), a state prisoner challenging the denial of parole would be precluded from petitioning for mandamus in the Commonwealth Court. See DeFoy v. McCullough, 393 F.3d 439, 445 (3d Cir. 2005). Zuniga has ...